| Guerra v. Kandel, et al. | CASE NO. 111CV203722 | |
| DATE: 24 October 2014 | TIME: 9:00 | LINE NUMBER: 1 |
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 23 October 2014. Please specify the issue to be contested when calling the Court and counsel.
On 24 October 2014, the motion of defendant Brian Kandel (“Defendant”) to compel further responses to special interrogatories and demands for inspection and for monetary sanctions was argued and submitted. Plaintiff Joe Guerra (“Plaintiff”) filed a formal opposition to Defendant’s motion.
- Statement of Facts
On 23 June 2011, Plaintiff filed a form complaint for negligence and legal malpractice against Defendant. Plaintiff alleges that Defendant breached his fiduciary duty of loyalty, engaged in representation despite a conflict of interest, revealed attorney-client privileged communications, and took a position adverse to Plaintiff, a former client, when he provided aid to a third party who ultimately sued Plaintiff.
- Discovery Dispute
On 24 March 2014, Defendant served Plaintiff with a second set of special interrogatories (the “SI”s) and a third set of demands for inspection of documents (the “DI”s). After Defendant twice agreed to extend his time to respond, Plaintiff served responses to the SIs and DIs on 2 June 2014.
Plaintiff’s responses to SIs 50-82 consisted of identical objections, with no substantive responses provided. His responses to DIs 68-79 consisted of an identical objection and did not include substantive responses. On 25 June 2014, Defendant’s counsel sent Plaintiff, who is self-represented, a letter challenging these objections and demanding substantive responses to the discovery requests at issue. On 5 July 2014, Plaintiff responded in a letter in which he defended his responses and suggested that Defendant serve modified, unobjectionable discovery responses.
Following this exchange, Defendant filed the instant motion to compel Plaintiff to provide further responses to SIs 50-82 and DIs 68-79 on 16 July 2014. The motion was initially noticed to be heard on 5 September 2014. On 29 August 2014, the Court entered an order continuing the hearing until 24 October 2014 pursuant to the parties’ stipulation. On 9 October 2014, Plaintiff filed papers in opposition to Defendant’s motion. On 16 October, Defendant filed reply papers in support of the motion.
III. Discussion
- Motion to Compel Plaintiff to Provide Further Responses.
- Legal Standards
A party propounding a request for production may move for an order compelling a further response if it deems that an objection in the response is without merit or too general. (Code Civ. Proc. (“CCP”), § 2031.310, subd. (a)(3).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (Guess? Inc.) (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (Kirkland v. Super. Ct., supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)
A party propounding interrogatories may move for an order compelling a further response if that party deems an answer is evasive or incomplete. (CCP, § 2030.300, subd. (a).) The statute does not require any showing of good cause for the serving and filing of interrogatories. (Coy v. Super. Ct. (Wolcher, et al.) (1962) 58 Cal.2d 210, 220-221.) If the motion is timely filed, the burden is on the responding party to justify any objections or failure to fully answer. (Id.)
- Defendant’s Separate Statements
As an initial matter, Plaintiff contends that Defendant’s separate statements are defective because they do not set forth the reasons why further responses to the SIs and DIs are warranted. (See Cal. Rules of Court, rule 3.1345(c)(3) [separate statement must include for each discovery request “[a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute”].)
While Defendant’s separate statements omit this required information, Defendant’s arguments—like Plaintiff’s discovery responses—are the same with respect to each of the SIs and each of the DIs, and are set forth in Defendant’s memorandum of points and authorities. Plaintiff and the Court can address Defendant’s arguments without the need for Defendant to reproduce them in his separate statements, and the Court accordingly exercises its discretion to consider Defendant’s motion despite the technically deficient separate statements. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894 [the court has the discretion, but is not required, to deny a motion for a deficient separate statement].)
- The SIs
SIs 50-82 ask Plaintiff to identify the facts, witnesses, and documents supporting his discovery responses and contentions in this action. Contention interrogatories such as these are a permissible method of discovery. (See Burke v. Super. Ct. (Fidelity & Deposit Co. of Maryland) (1969) 71 Cal.2d 276, 283-285.)
In his opposition papers, Plaintiff defends his objections that the SIs impermissibly refer to documents outside of the SIs themselves, namely, Plaintiff’s complaint and previous discovery responses, and also include an unapproved preface or instruction, a “definitions” section. (See CCP, § 2030.060, subd. (d) [“Each interrogatory shall be full and complete in and of itself. No preface or instruction shall be included … unless it has been approved under Chapter 17 ….”].)
As to the first objection, “reference to [a] previous interrogatory … does not refer to or incorporate other materials or documents” unless the effect is to undermine the rule that parties shall not propound more than 35 specially prepared interrogatories without a supporting declaration. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1290; see CCP, §§ 2030.030-050 [setting forth the requirements to propound more than 35 specially prepared interrogatories].) Here, the SIs were accompanied by a supporting declaration, and Plaintiff did not move for a protective order as provided by the Code of Civil Procedure (see CCP, § 2030.040, subd. (a)) and does not now argue that Defendant’s service of more than 35 specially prepared interrogatories was improper. Consequently, Plaintiff has not shown that the SIs that refer to prior discovery responses are improper. In addition, Defendant’s SIs that reference Plaintiff’s complaint set forth the contention to which they pertain and are thus full and complete in themselves. Plaintiff’s objections that the SIs impermissibly refer to other documents are consequently overruled.
As to Plaintiff’s second objection, while Defendant’s preface is improper (see CCP, § 2030.060, subd. (d)), Plaintiff must nonetheless answer the specific SIs (see CCP, § 2030.240, subd. (a) [“If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.”]). Consequently, while Plaintiff’s objections to Defendant’s preface are sustained, these objections do not justify Plaintiff’s failure to respond to the SIs.
Finally, Plaintiff defends his objection that the SIs violate CCP section 2030.260, providing that a party to whom interrogatories are propounded shall serve responses within 30 days, because Plaintiff had fewer than 30 days to respond after accounting for the time it took him to obtain his prior discovery responses to which the SIs refer. This argument is simply an attempt to recast Plaintiff’s argument regarding the completeness of the SIs, and fails for the reasons discussed above. Furthermore, Plaintiff’s assertion that it was time consuming for him to locate his own prior discovery responses is disingenuous, particularly in light of the fact that Defendant twice agreed to extend his time to respond. Plaintiff’s objections pursuant to CCP section 2030.260 are thus overruled. Plaintiff asserts no other objections or arguments with respect to the SIs.
In light of the above, further responses to SIs 50-82 are warranted, and Defendant’s motion is GRANTED as to the SIs.
- The DIs
DIs 68-79 seek documents identified in Plaintiff’s responses to the SIs and to form interrogatory 9.2. Plaintiff contends that Defendant has failed to establish good cause for the production of these documents. However, it is apparent that documents supporting Plaintiff’s discovery responses and contentions in this action are relevant thereto, and the Court finds that good cause supports the DIs.
Plaintiff also defends his objection that the DIs violate CCP section 2031.030, subdivision (c)(1), which provides that document demands shall designate the documents requested by specifically describing each individual item or by reasonably particularizing each category of item. According to Plaintiff, Defendant’s use of interrogatories to put the burden on Plaintiff to identify the documents at issue is impermissible. Plaintiff cites no authority in support of this argument, and it would undermine the discovery process to require the propounding party to guess at the specific relevant documents in the possession of the responding party, who is often the only party with knowledge thereof. CCP section 2031.030, subdivision (c)(1) provides that document demands may specifically describe each individual item or provide a reasonably particular category of items, and the DIs satisfy the latter requirement.
Plaintiff’s objections to the DIs are accordingly overruled, and further responses to DIs 68-79 are warranted. Defendant’s motion is accordingly GRANTED as to the DIs.
- Defendant’s Request for Monetary Sanctions
Defendant makes a code-compliant request for monetary sanctions against Plaintiff pursuant to CCP sections 2023.010, 2030.290, subdivision (c), 2030.300, subdivision (d), 2031.300, subdivision (c), and 2031.310, subdivision (d).
Sections 2030.300, subdivision (d) and 2031.310, subdivision (d) provide that the court shall impose a monetary sanction against any party or attorney who unsuccessfully opposes a motion to compel further responses to interrogatories and demands for inspection, respectively, unless he or she acted with substantial justification or other circumstances make the imposition of the sanction unjust. Here, Plaintiff’s opposition was unsuccessful, he did not act with substantial justification, and no other circumstances make the imposition of a sanction unjust. Accordingly, the Court will award monetary sanctions against Plaintiff pursuant to these provisions. The Court need not address Defendant’s requests pursuant to the other provisions identified above in light of this ruling.
Defendant’s counsel declares that he spent 1.6 hours in meet and confer efforts and 9.4 hours drafting the moving papers in support of Defendant’s motion, and anticipates spending an additional 3 hours attending the hearing on the motion. The Court does not award sanctions for time spent meeting and conferring. In addition, sanctions are only available for expenses actually “incurred,” not for anticipated expenses. (See CCP, § 2023.030, subd. (a).) Consequently, the Court will not award sanctions for counsel’s time in meet and confer efforts or anticipated time associated with the hearing on this matter.
The Court will award sanctions for counsel’s time spent preparing the moving papers, but finds that a more reasonable amount of time to have spent on the papers at issue would have been 5 hours. Counsel’s billing rate of $225 per hour for this work is reasonable, and the Court will consequently award $1,125 for counsel’s time (5 hours x $225 = $1,125). The $60 filing fee and $30 court reporter fee are also compensable.
In accordance with the above, Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $1,215.
- Conclusion and Order
Defendant’s motion is GRANTED. Plaintiff shall serve verified, code-compliant further responses to SIs 50-82 and DIs 68-79, without objections (except for objections to the preface of the SIs, which are sustained, but do not excuse Plaintiff from responding to the SIs) and produce all responsive documents in conformity with his responses to the DIs within 20 calendar days of this Order.
Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $1,215. Plaintiff shall pay $1,215 to Defendant’s counsel within 20 calendar days of the filing of the Court’s order.
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DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
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